The Equal Employment Opportunity Commission (“EEOC”) is the body charged with enforcing federal anti-discrimination laws. Through much of the coronavirus pandemic, the EEOC took the position that employers could uniformly adopt and implement viral tests as screening tools to discourage the introduction and spread of the coronavirus in the workplace. On July 12, 2022, the EEOC modified its guidance on this topic, effectively requiring employers to conduct ongoing, case-by-case analyses of any given work environment to determine whether mandatory screening tests are justified.
The EEOC classifies a COVID-19 viral test as a “medical examination” under the Americans with Disabilities Act (“ADA”). Therefore, an employer must demonstrate that a mandatory test is “job-related and consistent with business necessity.” Under the prior guidance, the scope of the pandemic itself on a national scale seemingly satisfied this requirement for all employers. Under the modified guidance – presumably reflecting high vaccination rates, lower infection levels, etc. – employers must individually make the business necessity determination for each workplace. Factors to consider may include:
the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
Given the new requirements (and the risk that an employee might successfully challenge a business’ decision to implement mandatory testing), it may be tempting to abandon testing requirements altogether without further analysis. But in making that decision, the business must keep in mind its continuing obligation under OSHA to maintain a safe workplace. Careful employers will commit to an ongoing analysis of the particular factors impacting their workplace at any given point in time and will adopt policies tailored to those factors. This means the policy adopted last month may need to be modified or reversed this month.
Questions about how to apply the new guidance in your business? Reach out to Wright Beamer at firstname.lastname@example.org or 248.477.6300.